*1 Be on a limited basis.3 Appeals Court neither, I majority does dissent.
cause HOWLETT,
Jimmy Appellant, of Texas.
The STATE
No. 881-97. Appeals of Texas.
Court of Criminal
June reasoning, agree we its Appeals’ Rodriquez v. 3. See ( 1999) (Tex.Crim.App. firmed; holding....”). af- Court of ultimate "Although disagree with we *2 28.03(a)(2). § The trial court
Code Ann.
punishment
assessed
at a
fine and
$500
confinement,
years
four
suspended
but
im
position of the
placed appel
sentence and
lant on community supervision for four
years.
appeal,
On
the conviction was re
versed and the case remanded for a new
trial. Howlett v.
On
a Lone Star Gas
Company construction crew discovered an
tap
unauthorized
to the inlet
connected
repairing
riser of
meter while
a
in main gas
leak
a
line in
alley
behind
tap
residence.
appellant’s
The
consisted
of a saddle valve in
of the
the side
service
line
which diverted
before it went
through the metering device. The saddle
position
valve was
“on”
and
flowing out of the line
into the
and
valve.
investigation
Further
copper
uncovered
tubing
appellant’s property
buried on
appellant’s
which led
garage. There
copper tubing sticking
out
the base-
appellant’s
garage
board
was un-
connected,
ap-
but the ends
the tubing
Abilene,
Paynter,
Ed
for appellant.
cut,
peared
recently
have been
and the
Shadle,
Abilene,
Kollin
Asst. Dist. Atty.,
two nearby gas
sug-
threads on
heaters
Paul,
Austin,
Matthew
Atty.,
State’s
for
gested
they recently
had been discon-
State.
copper tubing.
nected from the
Appellant was subsequently charged
OPINION
with criminal mischief.
indictment al-
HOLLAND, J.,
opinion
delivered
leged
intentionally
knowingly
and
tam-
Court,
McCORMICK, P.J.,
in which
pered
tangible
with the
property
MANSFIELD, KELLER, PRICE,
Company resulting
pecu-
Lone
Star Gas
WOMACK,
KEASLER, JJ.,
joined.
and
niary loss
substantial inconvenience to
Howlett,
A
appellant, Jimmy
found
on or
owner
about
1993.
28.03(a)(2).2
guilty of
mischief.
Specifi-
criminal
Tex. Penal
Tex. Penal Code Ann.
review,
1.
grounds
In its two
for
asks
a
absent
the Slate
obviates
limitations instruction
evi-
(1)
showing
this Court to address:
whether the defen-
dence before the
termination of
may
sive issue of limitations
be raised
the offense.
presence
jury;
evidence
(2)
outside the
of the
finding
provides
part:
continuing
whether a
of a
28.03
offense
Article
relevant
trial,
portion of
guilt/innocence
charged
in-
At the
cally, appellant
with the
tap
an
which
unauthorized
appellant requested
stallation
instruction
it went
diverted
before
trial
court
of limitations.
statute
28.03(c)(2)-
meter. Tex.
Penal
Ann.
Code
appeal ap-
appellant’s request. On
denied
(3).
application
for
Appellant filed
failure to
the trial court’s
pellant claimed
*3
corpus alleging
of
the
pre-trial writ
habeas
was
instruction
error.
give the limitations
The
had run.
basis
statute of limitations
Howlett,
The
at
State
946 S.W.2d
875.
undisputed
was
for the
that
application
Appeals had resolved
claimed the Court of
the
established that
offense
testimony
corpus
in
habeas
limitations issue
the
the
around the
occurred it occurred “sometime
thus,
of
is-
appeal,
consideration
year
tap
when
1985
the
was installed”
doc-
pursuant
sue
foreclosed
the
was
limita-
applicable
which was outside the
of
case.”
trine of “law the
period.3
tions
Cbim. PRO. Ann.
Tex.Code
12.01(6).
hearing,
a
conducting
art.
After
The
Appeals disagreed.
of
The Court
application.
the
the trial court denied
writ
of limita-
that “the issue
court observed
The
of
affirmed.
Appeals
Eastland Court
challenge
as a
to the
tions
be raised
[could]
(Tex
Howlett,
937
parte
Ex
law)
(question of
or
a chal-
indictment
refd).
1995, pet.
.App.
The
- Eastland
sufficiency
the
to the
of
evidence
lenge
appeal
does
question on
was “when
the
Howlett,
of
946
(question
proof).” See
statute of
commence to run for
limitations
874,
court concluded
S.W.2d at
875. The
by
of
the offense
criminal mischief
the
challenge
to the failure
appellant’s
gas:
of
at
unauthorized diversion
a
on limitations was
give jury
a
instruction
the
in
tap
the time
unauthorized
is first
trial
question
proof,
of
and held the
court’s
at a
date
it
stalled or
later
when
causes
give
the instruction was error
refusal
pecuniary
the
Id. at
loss to
owner?”
938.
the issue of limitations had been
“[b]ecause
that,
of Appeals
The Court
determined
jury
to decide the
raised and the
was
case,
under the facts of the
the offense was
Concluding
error
issue.” Id.
875.
the
“continuing”
“being
a
that was
offense
“appellant hotly
harmful
con-
because
tap
committed as
as the
long
install
[was]
jury
the limitations issue” and the
tested
diverted,
being
causing
ed and
[was]
guilty for
permitted
“appellant
to find
Overruling appel
loss to the owner.” Id.
period,”
not within the limitations
conduct
error,
point
lant’s sole
of
the Court of
the
Appeals
of
convic-
Court
reversed
Appeals held “limitations could be calculat
for a new
1993,
tion and remanded
case
5,
alleged
ed from
date
Id.
trial.4 Id.
876.
indictment.”
if,
(a)
(2) prevented
being
regis-
correctly
from
person commits an
without
A
offense
device;
the effective
of the
by metering
consent
owner:
or
a
tered
(1)
knowingly
intentionally or
he
dam-
(3)
by
installed to
activated
device
property
ages
destroys
tangible
or
of
communications,
public
public
obtain
owner;
the
(2)
water,
a
gas,
power supply
or
without
intentionally
knowingly tampers
or
metering device.
tangible property
of the owner
with
pecuniary
and causes
loss or substantial
Undisputed
3.
that in the
evidence established
or a
inconvenience to
owner
third
appellant's ex-wife told Abilene
fall of 1985
...
person;
police
appellant
had
officer that she
observed
parte
place
tap
Ex
How
on the line. See
section,
(c)
purposes
it
For the
of this
shall
lett,
(Tex.App.
S.W.2d
- Eastland
receiving
presumed
person
be
that a
who
ref'd).
pet.
public
of
communica-
the economic benefit
tions,
water, gas,
public
power supply,
or
analysis
its harm
the Court
In
knowingly tampered
tangible
has
judge
the trial
cited the
note sent to
also
property of
if the
the owner
communication
questioning whether
during deliberations
supply has
or
been:
al-
finding
on the date
(1)
the offense occurred
passing
diverted from
a me-
device;
necessary lege in the indictment was
tering
The State
Ap-
now claims the
appropriate legal
standard.
begin
peals’ holding conflicts with
“law of the
analysis
examining
our
doctrine
case.”
State contends
to be enti-
it
“law of the case” to determine whether
limitations,
to a
tled
instruction on
governs
issue of
limitations.
point
had to
evidence
some
its
In
most basic form the doc
called the
question.
matter into
“provides
appellate
trine
that an
court’s
claims
State
there had to be
evidence
some
question
resolution
a
previ
of law a
the diversion
terminated three
appeal
ous
of the same
govern
case will
prior
years
to the date
in-
alleged
disposition
of the same issue when
dictment before
entitled
subsequent appeal.”5
raised in
Law
instruction
according
because
to the
*4
the case is a court-made doctrine designed
of the
law
case “the
of criminal
offense
judicial
promote
to
consistency and effi
was
in
continuing
mischief
nature.” The
ciency
the
appel
that eliminates
need for
claims the trial
not
in
State
court did
err
prepare opinions discussing
late courts to
refusing to give the limitations instruction
previously resolved
parte
matters. Ex
undisputed
because the
evidence estab-
State,
Granger, supra; LeBlanc v.
826
the
lished
offense continued
to the date
up
640, 644 (Tex.App.-Houston
S.W.2d
[14
alleged in
h
the indictment.
t
ref'd).
1992, pet.
Dist.]
doctrine as
Appellant asserts that “law of the case”
they
rely
sures trial
can
courts
on the
not apply
does
to this
the
case because
appellate
in
disposition
court’s
of an issue
of Appeals’
Court
holding that
offense
presiding
provides
over
case and
an in
a continuing in
“clearly
was
nature was
centive for trial courts to follow these deci
pecuniary
erroneous.” He contends
loss is
State,
See Lee v.
closely.
sions
67 Tex.
an
not
element of
of criminal
the offense
137,
706,
(1912) (opin
Crim.
148 S.W.
713
because
mischief
this Court has held that
(if
for rehearing)
ion on motion
rule were
knowing
“the
and
tampering
intentional
otherwise
courts
in
great
“trial
would
the tangible property
owner or
of the
sea,
measure be at
and would feel inclined
person
a third
without
consent
the owner’s
to give
weight
be authorized
but little
is an offense even if it
not cause
does
court.”).
of the [appellate]
decisions
State,
pecuniary loss.” Williams v.
596
862, 864 (Tex.Crim.App.1980). Ap-
S.W.2d
application
The doctrine’s
is not in
pellant
claims whether the natural
con-
parte Granger,
flexible. Ex
850
at
S.W.2d
tinued
flow
valve
An appellate
may
516.
court
reconsider
discovery alleged
until
time of
disposition
point
its earlier
of
of law
such,
consequence.
indictment is of no
As
the court
there are “exception
determines
every
asserts
of
element
the of-
mitigate
al”
re
against
circumstances
completed
fense
1985 and
lying
prior
on its
decision. Id. Where the
Appeals correctly
determined
are identical in a
facts and issues
second
entitled
to a
instruction on limita-
most
appeal,
“exceptional”
common
tions.
appears
is that the earlier
circumstance
“clearly erroneous.”
have been
Id.
II.
present-
corpus
Before we can resolve
In
habeas
appeal
the issue
must
ed we
determine whether the Court
held the
Appeals
Court of
offense of crimi
28.03(a)(2)
reviewed the
under
out
evidence
nal mischief
in Section
is
set
1987));
(Tex.Crim.App.
whether the
1993
701
disconnection
S.W.2d
see
Howlett,
State,
tampering.
(Tex.
946
constituted
S.W.2d
e.g.,
v.
Granviel
667
Id.
its
in a
diminishes
value.”
being
way
“still
in nature and was
“continuing”
commentary to Section
long
tap
(citing practice
as the
install
[was]
committed as
Code).
diverted,
con-
causing
being
Texas Penal
[was]
ed
28.03 of the
Howlett, 900
parte
loss to the owner.” Ex
“substantial
alleged
indictment
cluded the
disposition of
S.W.2d at 938.
court’s
al-
the conduct
inconvenience” because
the “law the
point
service,
of law became
ais
tampering
public
with a
leged,
proceedings
all future
throughout
case”
felony
the statute even
third
under
degree
case,
including
trial on
merits.
Id.
at
results.
pecuniary
if no
loss
Granviel,
Ware,
701;
e.g.,
See
736
S.W.2d
147; Willis,
appellant, Williams
Contrary
S.W.2d
S.W.2d
7
“pecuniary loss”
Appellant
at 303.
claims the Court
does not eliminate
(a)(2). Instead,
point
Appeals’
of this
of law
determination
element under subsection
“clearly
according
because
must
according to Williams
erroneous”
the State
(Tex.
Williams
either
prove
accused’s conduct caused
object
Crim.App.1980) the
offense
crimi
inconvenience
pecuniary loss
substantial
proof
pe
require
nal mischief does not
case, the
In
instant
to the owner.
cuniary
pecuniary
loss. Because
loss
alleged the owner sustained
indictment
offense,
element of the
substantial
inconve
“pecuniary loss and
*5
completed
asserts the offense was
in 1985
al
Although
were
nience.”
both elements
of
crime
oc
when each element
the
had
conjunctive
had the
in the
the State
leged
State,
curred. Barnes v.
falls short of
limitations, but
appellant
raised
with the
nevertheless interferes
owner’s
in the record
rights
property
failed to cite
evidence
proprietary
abuses
on which it relied and we find none.6 the basis that he was entitled to have the
Howlett,
trial, (appellant) and one for the defense Q. 1988? (1) eight prosecution: for the Sharron No, sir. (2) ex-wife; Power, appellant’s James Q. 1987? Rhodes, with a service technician customer (3) No, Gross, Gas; sir. Star Howard former- Lone supervisor a construction maintenance ly Q. 1986? (4) Lucia, Gas; Frank with Lone Star No, sir. technician with Lone customer service Q. 1985? (5) Gas; McFerrin, a Bobby customer Star sir. Gas; with Lone Star service technician (6)Travis Miller, 1984? formerly regional con- superintendent with Lone Star struction A. No. (7) Gas; Janusz, a with patrolman Michael before 1984? Any time (8) Department; the Abilene Police Harris, Lee a facilities records ana- Oliver knowl- your personal own from So The limitations lyst Lone Star Gas. Gas say can’t that Lone Star edge you defense, up by brought issue from cubic foot lost one both, in examination of six prosecution, illegal source? Dur- eight prosecution witnesses. that he connection I saw Lucia, the ing cross-examination *7 put on there. place, in following exchange took which pros- directly defense counsel attacked the Q. you, Lucia—I I asked Mr. What alleged criminal theory ecution’s that about, want talk but you what know was conduct which had occurred an offense I to talk this. Can you want about continuing through 1993: knowledge you personal from state Lucia,
Q. you, any Do Mr. have direct foot Gas lost one cubic that Lone Star personal as to whether or information at gas by connect of natural any through was taken gas natural Ballinger? Ballinger during illegal means at 1502 Well, there. A. connection was on year 1993? Well, to the Q. this’s not answer I re- A. saw the connection that was I I asked question you. that asked in moved ’93. any any knowledge have you you do I I Q. you. That not what asked is gas illegally diverted? being you any personal do have direct said put A. the connection Why would any gas illegally knowledge that was on? Ballinger during taken to 1502 You don’t Just second. Court: year 1993? get questions. to ask No, A. sir. No, sir. any Q. you do have What about no, Q. is it not? Your answer personal or knowl- direct information No, Howard, sir. Yes. Q. I am gomg up just to back a little bit from where we were. (S.F. 84-86). Ill, vol. at Similar ex- you When were out there on I be- changes occurred between defense counsel 6th, lieve 5th and you when and McFerrin1 and Miller.2 were out there repairing the leaks Gross, On redirect examination of gas service to the homes ever prosecution attempted to elicit testimony cut off? that there by had been recent of gas use appellant: A. No. Q. McFerrin, Q. you 1. Mr. any personal do have you any gas Did find in this knowledge any gas being copper taken ille- line? gally Ballinger into copper in A. Not in the of 1993? line. On the outside copper of the Q. line at the T. you A. What do mean that? you gas So copper found no inside Q. Well, you you any I asked if per- have line? knowledge sonal gas being A. I didn't copper test the inside of the illegally Ballinger taken into 1502 line. year 1993? Q. copper you say Is this the line that I gas have no if idea it was into the was in the house? illegally. house That, you I can’t tell for sure. Q. What about 1992? Q. copper you say Where is the line that No, sir. you in found the wall of the house? Q. '91? That, I don’t know. A. I have no idea. Q. you Did lose it? Q. '90? part A. It is of this. sir. Q. you Did lose it? Q. Any time in the 1980s? A. No. Officer Janusz had this. idea, A. I have no sir. Q. copper carry Would line such as this Ill, 99-100). gas? water in to natural addition Yes, A. Sure. sir. Q. you many Can tell this how cubic Q. water, swamp A cooler carries does it feet of natural fitting, flowed out of this not? all, August it did of 1993? A. Sure could. Q. A. I truthfully you can’t tell how much it very And it would be common to use out, flowed no. pipe carry swamp like this to water to a Q. cooler, you Can tell us how much flowed out would it not? July of it in of 1993? you A. If had one inside of the No, sir, house, yes, cannot. sir. June of 1993? many Can tell the how cubic through feet of claim went At pipe August month in can tell this of 1993? No, sir, whether or not flowed out of this I cannot. particular fitting? many Can tell them how cubic feet personally A. I cannot. July went that line *8 Q. What about 1992? 1993? No, No, sir, A. sir. A. I cannot. Q. Q. 1991? Any month in 1993? No, sir, No, A. sir. A. I cannot. Q. Q. 1990? Any any year month of in 1990? No, No, A. sir. A. sir. Q. Q. Any time in 1985? What about the 1980s? that, you A. I can’t tell no. A. I have no idea. Q. Q. Any time in the '80s? What about the 1970? No, A. sir. A. I have no idea. Q. Q. Any time in the any way you '70s? Is there for to determine No, that? gas through A. Determine that went it? Q. Q. No, you presence Did test that line gas for sir. Determine how much gas? any particular went it at time. A. We tested it in the area of where the T A. I cannot. (S.F. Ill, 155-156, 167-169). was at when we found the dirt black. vol. kind was a mat of some you A. Yes. There
Q. procedure What when was where it covering gas line replac- were on the 12th out there mat. underneath the and cut loose ing replacing main gas risers, procedure these what is Q. dug up at all? Had it been cutting far off to the as A. Yes. things? homes and tell? Q. you could How Well, get our new lines in there we dirt. Loose run our new lines over and then we try to one meter at a time. We tell could Q. you that or How could cut customer off at a time one copper whether or not the you tell where it be inconvenient wouldn’t ?cut tubing recently had been all it one for the customers. We did Yes, shiny, so It was kind of it was. at a time. yes, kind of shiny. it was Q. your experience, 37 ex- years From Q. your experience years of 37 So from Gas, if perience Lone Star with Lone Star Gas what did there line in that or in was riser you? tell particular this riser recently cut. That it was gas coming cut off and there be, Now, Q. y’all cut that? out that valve would that did guess I call recent or what fresh not. we did gas? Q. it? you was like that when found It any gas it in it? Would be A. Yes. Q. Yes. there be in it Would (em- 116-117) 112-114, Ill, at you when cut the service to re- off added). phases place the riser? amount, very It would be a small Gross, de- On recross-examination of yes. would be some it was It unless attempted contest fense counsel leaking out somewhere else. issue:
Q. But that was there Gross, you Mr. Q. you, me ask did Let something you just recently cut off have occasion on ever just a minutes before start- you few 12th, you you went say 1993 when riser, ed on the working would Balling- backyard to the at 1502 out be fair? at 1502 into the house go er to A. Yes. Ballinger? only time I went in the house Now, you anything did the—did find was— with that instrument to find the you day did I asked lines, the line go the house? into
indicator? day we searched If that’s helped. pretty A. Yes. It It was close. house, I did. Had what re- anything —from went the house So seeing anything had been member Did inside searched? find *9 tubing copper done to the in certain usage any there was house that places? time? going at that it right A. Yes. cut loose before It was A No. and it was cut went into the house a floor Q. any find kind of you Did garage. loose at the furnace? Now, Q. in the back to- garage is the A. wards No. alley?
Q. Was a floor pointed Q. furnace you out to any Did see tubing inside the
you, up by carpet? covered house?
A. No. Yes, we did.
Q. you Did check the water heater? Q. Did Mr. you anything Howlett show in the house? No. A. He showed Q. me kerosene heater youDo know whether it was electri- space and a heater which he cal said gas? or used for heat. I don’t. Q. heater, What about the water do Q. you any Did check of the bathroom you anything know about it? Do they as to heaters whether were you know whether it was or or electrical? not? I did not. I really don’t recall looking at the Q. you Did any evidence in the find water heater. Ballinger house at 1502 gas ser- Q. you Did he ever show a covered vice to Ballinger? floor furnace? I found gas line in the garage be- furnace, no, I don’t recall a floor hind— Now, Q. you did notice at the time that Q. you asked at 1502 Ballinger the tubing had been cut in different there, Gross, house Mr. that is what places? now, we talking are about the house you you went into. Do me A. Yes. —let this, you ask Mr. Typically Gross. Q. your years From with Lone Star my you information is have a wall Gas did the cuts—what did the cuts here and a floor and a base board long look like or how had it been typically you when have since that tubing had been cut? being supplied in a you house have very long. Not something coming way out with a Q. And what upon? was that based to turn it on place you and a where upon A. Based tubing looking new it, can something hook correct? and the area of where it being A. That is correct. cut. Now, Q. universal, that is kind of is it Q. copper Does easily? stain not? A. Yes. A. Yes. Q. What will cause it to stain? you Did any these find A. Underground things chemicals and house at 1502 Ballinger? like that will cause it to turn kind of
IA. did not look for connections in a dark color. any appliance. house or Q. And those were shiny ends still Whether or not looked for them present time? not, did any? see Yes, they were. No, I did not. Q. Were the ends still the dirt? 134-135) III, (emphases add ed). Miller, A. Yes. On direct examination of prosecution attempted testimony to elicit any of Was the—had the dirt going to recent criminal activity by appel been disturbed by where found lant: the ends cut had the been dirt dis- Did ever turbed or go dug up recently? inside the house? house, Yes, *10 yes,
A. Went inside the I did. A. it had. in there you At time went was Q. you find inside the the tubing Did Q- any part into being diverted gas residence? house? this Yes, A. we did. No, sir, A. it not visible. was much,
Q. you how re- And about do an Q. try Did to find area you look member? being it diverted into the where was feet, I re- A. In the area of 15 house? member, I believe. A. area. We did find an Q. it And was covered? Q. coming That into the gas was It was behind the base
A. board house? garage. tubing go A. used Where Q. was garage That attached to the wall. house? Q. you If a match to it would it put Yes, house, yes, A. attached to the sir. light? (S.F. 151-153) III, (emphases vol. at add No, sir, A. it had been cut loose. ed). Q. you said Is that the line re-direct, following there was During capable carrying water perfectly testimony: swamp for cooler? Q. you opinion Do have an to wheth- as Yes, sir, it is. copper put tubing er or not this Q. being gas When was that diverted or after that in before slab was on you premises, into the do know ground? when it was diverted It would to be have before because in there August of1993? poured there was some concrete up it connected at the Where was it top of and contacted with it. meter? Now, Q. everything from you saw Q. you specific I asked riser, day and including this question? indication ground, you do have opinion I I don’t can’t answer that. know. being to whether or not Q. you specifically Can answer as to diverted meter into from being any time when it was divert- Ballinger residence at 1502 ? ed into the house? A. There was on this going line No, sir, I I cannot because did not buildings. in there. being see it diverted Q. going And residence at 1502 179-180) (S.F. III, (emphases vol. add Ballinger? ed). Janusz, On examination of direct Yes, sir. following testimony was elicited prosecution: 176) added). III, (emphases attempted you type Defense counsel to contest Do what of heaters know following: they were? you Did find into that coming They designed were heaters run — garage? gas. run double on natural No, sir, they cut I or not It had been loose. did Could tell whether recently? not. had been used observed, Well, what asking I am when I looked at heaters any gas saw could there was dust all— being diverted see that any part into house? responsive That Defense Counsel: sir, not. to the that was asked. question I did *11 objection. Right. Go Court: Overrule ahead. (S.F. 216-218) IV, (emphases add- vol. Q. heat- anything Was there about the ed). Finally, on direct examination of
ers? Harris, prosecution elicited the follow- A. Well— ing: From,
Q. you what could tell to see Q. only this connection not Did they used whether or not had been loss, provide pecuniary but did it recently or not? provide a substantial inconve- also Well, Company? this was so I would nience for Lone Star Gas they heat assume weren’t used to A. Yes. anything August, but I could tell Now, Q. you were able to estimate that those heaters— amount that was lost in this object to his as- Defense Counsel: case? particular sumptions anything. If we about They up came with—it is an Yes. him object stating don’t the facts estimate. knows, object him that he but we getting opinions assump- into his and Now, Q. you you said had an estimate.
tions. you Do know what that estimate objection. The Court: Overrule was? . Q. What could tell about the heat- $3,300.00, in that Approximately they ers whether or not were used? neighborhood. Well, the treads on the heaters Q. period what time That was from they recently looked like had been dis- period? what time connected because there was no dust on them and there was dust on I January ’89 want to except unit connection to entire say August of‘93. copper tubing a—to some so that Q. you just period took that So just— would indicate to me that it was time? just somebody things took those A. Yes. apart, they were took them off before 223-225) IV, (emphases add- hanging. ed). to contest attempted Defense counsel Q. pictures Where the taken from [sic] following: with the they is where were when found Q. natural many How cubic them? feet of passed through this riser up in that They sitting A. No. were of1993? storage Ballinger, area at 1502 that. can’t answer little add-on section of his metal work- shop on a they sitting were both of natu- many fight [sic] How cubic photographed and I them be- shelf passed through ral that riser they obviously cause were used July of 1993? heat. I can’t that. answer take them off the shelf and Did Q. What about June of 1993? put pic- on the floor to take a them No, I can’t answer it. ture? Q. May of 1993? off, why That I took them Right. A. No. them, but thinking seizing I was about photograph I decided to them. tell us month can Any gas, many how cubic put You them back on shelf feet through this riser? any, passed left the heaters there? *12 much, only the instructions Please consider no. I cannot tell how already given been which have much natural you tell me how Can before evidence admitted and the through ris- any, passed this gas, if cause, and the trial of this during 1990, years any er in month your deliberations. continue 1991, 1992? 103-105). (C.R., at A. Let me— the refusal no doubt that There can be No, sir, just my questions. answer on limita- jury instruct the court to the No, sir. such, a As its deliberations. tions affected many cubic you tell me how Can was affected. right” Tex. “substantial gas, any, passed feet of R.App. 44.2(b). of the judgment The P. any years desig- riser in the this and affirmed should be nn ’82,’88, ’85, ’86,- 1980, ’81, nated trial. remanded for a new the cause ’87,’88, ’89? dissent, majority the response In to this I can’t. jurisprudence law and radically alters the Harris, specula- by Mr. other than First, effec- ways. it of this state in two can’t tell conjecture you tion silentio, overrules, v. sub Proctor tively jury with this State, that by a this court supra, decision ever certainty whether or not majority states barely year a old. is at all passed through this riser cited “does not that the record evidence can illegally, you? diverting illegally stopped show Ante, at of 1993.” gas prior August Proctor, held that n. 7. In we 668 (S.F. 225-227) IV, (emphases add- vol. defense, and that limitations is a statute of ed). by defense may assert the the defendant clear, testimony the issue As this makes limita- a instruction on requesting jury vigorously limitations was contested is some evidence tions if there before circum- by trial both sides. Under such source, prosecu- that the jury, from stances, an instruc- give it was error not to If there is tion is limitations-barred. when it was tion on the issue of limitations and the some such evidence defendant State, v. requested by appellant. Proctor limi- on the jury a instruction requests 840, (Tex.Crim.App.1998). 967 S.W.2d 844 defense, must then the State tations harm, vigorous issue of As to the doubt that beyond a reasonable prove suggests, in and of contesting of this issue is not limitations- prosecution itself, giving that not the instruction barred. by the fact harmful. Harm is also shown Proctor, (emphases at 844 out a note to the trial that the sent added). testimony cited Clearly, limita- judge specifically asking about the evi- opinion this raises “some throughout The record reflects the follow- tions issue. dence,” a appellant requested jury: from the regard to the note ing 318-323; IV, at instruction. proven on this need to be Jury: Does Proctor, 101-102). C.R., at Under 5, 1993, date, Jimmy requires forward thus going burden of Howlett, can we tampered then or doubt prove beyond reasonable state determination on 1985? decide on this not limitations- prosecution is Does this also include disconnection however, Now, enough it not is barred. tamper- be considered be “some evidence” there ing? Now, a is limitations-barred. prosecution an in- law, required give Court, court is not under the trial Trial Court: the defendant unless ques- struction to permitted to answer is not new, undefined standard can meet a presented. have tion which (“show”) proof limi- prosecution jury); that the is served for Clewis addition, majority (Tex.Crim.App.1996) (ap- tations-barred. In S.W.2d going turns the burden of forward on its jury’s role as propriate balance between head and now requires reviewing duty court’s judge of facts and innocence, prove relieving his thus review criminal convictions struck proof beyond state its burden of rea- facts, allowing appellate court to “find” When, here, sonable doubt. the state’s *13 judgment jury); its for that of substitute circumstantial, “inability wit- case is of (jury art. 36.13 is Proc. Tex.Code Crim. testify something as to nesses whether facts). judge of and, happened,’’ante, by n. 7. impli- reasons, foregoing respectfully For the cation, inability testify of witnesses to dissent. happened, something as to when does that the raise “some evidence” statute of implicated.
limitations is de- When the
fense of limitations is raised “some
evidence,” the state’s burden includes
proving appellant illegally diverted period, yet within the limitations
majority affirms the denial of limitations instruction, “failed to saying Texas, The STATE stopped introduce evidence that he diverting the outside of the limitations Ante, period.” majority at 668 n. 7. The VELASQUEZ, Appellee. Allen Brian forgotten seems to have that a criminal 1099-98, Nos. 1100-98. prove nothing may defendant must be acquitted presenting any without evidence of Texas. Criminal at all. 16, 1999. June majority does not even mention the court, jury’s note to the a note which clear
ly jury’s attests to the concern with the limitations, i.e.,
statute of when alleged
had committed the criminal activi
ty. Despite jury’s recognition that this contested, majority
issue was now de that appellant
termines for itself did not
“show” diversion prior and that
ceased prove, through
the state did circumstantial doubt, beyond
evidence and a reasonable illegally diverted until and Ante, at n. 7.
after of 1993. upon majority has taken it itself a factual matter which the factfin-
resolve
der, jury, was not allowed to resolve instruction on the requested
because the
statute of limitations was refused. Such the most basic approach contrary See,
principles appellate e.g., review. (Tex. 197, 201
Wright v. (court
Crim.App.1998) appeals may fact-finder,
take role of which is re-